Full opinion text
OPINION and ORDER RAKOFF, District Judge. As the Court of Appeals has noted, “[t]his case raises a host of unusual [legal] questions.... ” Motorola Credit Corporation v. Uzan, 322 F.3d 130, 134 (2d Cir.2003). Part I of this Opinion and Order resolves such of those questions as are presently ripe for decision. No legal thicket, however, can hide the fact that all the credible evidence before the Court proves that the defendants — in particular, the members of the Uzan family — have perpetrated a huge fraud. Under the guise of obtaining financing for a Turkish telecommunications company, the Uzans have siphoned more than a billion dollars of plaintiffs’ money into their own pockets and into the coffers of other entities they control. Having fraudulently induced the loans, they have sought to advance and conceal their scheme through an almost endless series of lies, threats, and chicanery, including, among much else, filing false criminal charges against high level American and Finnish executives, grossly diluting and weakening the collateral for the loans, and repeatedly disobeying the orders of this Court. Part II of this Opinion and Order details the overwhelming evidence of this misconduct and the legal consequences that flow therefrom, including, among much else, an award of damages in excess of $4 billion and an order for the arrest and confinement of the individual defendants should they be brought within the jurisdiction of the Court. Before turning to any of this, however, a brief background is in order. Plaintiff Motorola Credit Corporation (“MCC”) is the financing affiliate of Motorola, Inc., a major provider of telecommunications equipment and services. Co-plaintiff Nokia Corporation (“Nokia”) is another major telecommunications manufacturer. Nokia’s financial arrangements, so far as here relevant, were handled through the Stockholm Branch of ABN-AMRO Bank N.V. (“ABN-AMRO Bank”). The defendants are the five leading members of the Uzan family, namely Kemal Uzan, Cem Cengiz Uzan, Murat Hakan Uzan, Melahat Uzan, and Aysegul Akay (collectively, the “Uzans”), their associate Antonio Luna Betancourt, and three Uzan-controlled companies, namely, Unikom Ile-tism Hizmetleri Pazarlama A.S., Standart Pazarlama A.S., and Standart Telekomuni-kasyon Bilgisayar Hizmetleri A.S. (“Stan-dart Telekom”). Directly or indirectly, the Uzans — reputedly among the richest families in the world, see e.g., L. Kroll, The World’s Billionaires, Forbes, Feb. 28, 2002—also control more than 130 other companies, including, of particular relevance here, a telecommunications company named Telsim Mobil Telekomunikayson Hizmetleri A.S. (“Telsim”). Between April 1998 and September 2000, the Uzans fraudulently induced MCC and Nokia to transfer to Telsim approximately $2.7 billion, supposedly to finance a major expansion of Telsim’s operations. Actually, however, the Uzans intended to divert a large part of these funds to other entities they controlled and to their own pockets, so as to fund their economic empire and to pay for such personal items as private airplanes, yachts, helicopters, and multimillion dollar apartments in New York and elsewhere. Although defendants’ refusal to provide much of the Court-ordered discovery leaves uncertain the full extent of the fraudulent diversion, it amounts at least to $1 billion, involving the direct transfer of $450 million from Telsim to other Uzan-controlled entities in Turkey, a separate diversion of $133 million from Telsim to certain Uzan-controlled entities in the Netherlands Antilles, and still another $552 million diversion through the device of inflated “Telsim” expenses payable to Uzan-controlled entities. Ultimately, it appears that as much as $300 million found its way into the Uzans’ personal bank accounts. Plaintiffs were slower to uncover this fraud than they otherwise might have been because the defendants provided them with false financial information about Tel-sim, because the defendants falsely represented that further financing from third parties was imminent, and, most especially, because the plaintiffs thought they were protected by substantial collateral. Specifically, the Uzans had arranged for still another of their companies, Rumeli Telefon Sistemleri A.S. (“Rumeli Telefon”), which at that time owned about three-quarters of Telsim’s outstanding shares, to pledge virtually all those shares to the plaintiffs as collateral for the plaintiffs’ loans to Telsim. But in April 2001, the Uzans, knowing that they could no longer stave off default, convened a secret meeting of Telsim’s shareholders at which they diluted the economic value of Rumeli Tele-fon’s shares in Telsim to a third of what it had previously been and transferred majority control of Telsim from Rumeli Tele-fon to Standart Telekom. A few months later, at another secret meeting, they stripped the remaining collateral of its voting rights and took other steps to further dimmish its value. Meanwhile, plaintiffs, having finally declared Telsim in default, sent financial investigators to Turkey to try to uncover the truth. The Uzans retaliated by filing criminal complaints against high ranking executives of Nokia, Motorola, Inc., and Motorola Turkey (Motorola, Inc.’s local affiliate), falsely charging the executives with threatening to kill the Uzans. But, despite these and other impediments, plaintiffs eventually uncovered enough evidence of the fraud to commence the instant lawsuit. The complaint, filed in January, 2002, charged the defendants with federal acts of racketeering, state claims of fraud, and other serious misconduct. Early in the case, the Court issued injunctive relief for the purpose of maintaining the status quo, including the preservation of what little was left of the collateral. But, the defendants contemptuously refused to obey the Court’s orders, in one case even breaking their sworn promise not to further eviscerate the collateral. The defendants also repeatedly reneged on promises to provide discovery ordered by Magistrate Judge Maas (to whom certain aspects of the pretrial preparation of the case were assigned), and instructed their counsel not to reveal to this Court or the Court of Appeals secret steps they were taking in Turkey to obtain ex parte orders undercutting the prior orders of this Court. Additionally, the defendants, though not themselves parties to any arbitration agreement with either of the plaintiffs, demanded that the instant disputes be submitted to Swiss arbitration pursuant to arbitration agreements between Telsim and MCC and between Telsim and ABN-AMRO Bank. Notwithstanding these difficulties, the Court conducted two evidentiary hearings and a trial, at which the aforementioned facts, and much else, were established. Subsequent to the trial, however, the Court of Appeals, to which the defendants had appealed from the Court’s preliminary injunction order, determined that those of plaintiffs’ claims brought under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., must be dismissed as unripe — without prejudice, however, to their being reinstated when they become ripe. Since several of this Court’s orders were premised, at least in part, on the viability of the RICO claims, the Court of Appeals remanded so that this Court could reconsider its prior rulings in light of this development. Thereupon, this Court, while dismissing the RICO claims (without prejudice), in accordance with the mandate of the Court of Appeals, see Order, dated April 3, 2003, invited motion practice on all issues implicated by the Court of Appeals’ decision or otherwise preliminary to any final determination of the underlying claims. Having received extensive submissions on these matters, the Court now adjudicates these motions in Part I of this Opinion and Order. I.The Motions The motions presently pending before the Court are resolved as follows: 1. Plaintiffs’ motion to preclude defendants (on grounds of waiver and the like) from further contesting any disputed matter in this case is denied as to jurisdictional matters and those legal disputes that reasonably could not have been expected to be raised except in the new posture of the case created by the Court of Appeals’ decision, but is otherwise granted. 2. Plaintiffs’ motion to supplement the Complaint to reinstate the RICO claims is denied, without prejudice to those claims being reinstated when the contractual remedies have been exhausted. 3. Defendants’ motion to dismiss for lack of standing MCC’s four claims relating to computer hacking, viz., Counts VIII-XI of the Complaint, is granted. 4. Plaintiffs’ motion requesting the Court to retain supplemental jurisdiction over plaintiffs’ remaining state claims is granted. 5. Defendants’ motion to dismiss MCC’s claims under Illinois law alleging common law fraud, promissory fraud, and civil conspiracy is denied. 6. MCC’s motion to amend its complaint to assert a claim under Illinois law for impairment of collateral is denied as moot. 7. Plaintiffs’ motion to extend their constructive trust claim to apply to certain property in New York is denied. 8. Defendants’ motion to dismiss on grounds of forum non conveniens is denied. 9. Defendants’ renewed motion to compel arbitration is denied. 10. Defendants’ motion to dissolve the Court’s preliminary injunction and attachment orders and to void all related findings of contempt is denied. 11. Defendants’ motion to dissolve the Court’s order enjoining defendants from pursuing certain Swiss arbitrations is granted. 12. Plaintiffs’ motion for a further finding of civil contempt against defendants based on defendants’ failure to comply with the Court’s Memorandum Order dated January 6, 2003 is granted. 13. Plaintiffs’ motion for attorneys’ fees and expenses as prevailing plaintiffs under RICO, 18 U.S.C. § 1964(c), is denied without prejudice, and MCC’s motion for attorneys’ fees and expenses as prevailing party on its computer hacking claims, see 18 U.S.C. §§ 2520, 2711, is denied with prejudice. 14. The motion of non-party HSBC Mortgage Corporation (USA) to modify certain aspects of the Court’s prior orders of attachment is granted. The reasons for the Court’s deciding these motions as indicated above are as follows: As to the first motion, plaintiffs move to preclude defendant from further contesting any disputed matters in this case (including those matters implicated by the Court of Appeals’ decision), on the ground that defendants, by expressly refusing to attend or participate in the trial of this case that commenced on February 19, 2003, waived, forfeited, or otherwise irretrievably lost their right to participate further in the case or to contest any issue therein. To some extent, this issue is addressed to the sound discretion of the Court, albeit informed by such considerations as whether defendants’ alleged waiver was intentional, whether plaintiffs’ would suffer prejudice if defendants were allowed to belatedly raise otherwise waived issues, etc. Here, the duplicitous “gamesmanship” practiced by defendants in this case makes it an appropriate situation for the application of doctrines of waiver and the like. For example, while conceding at the outset that the Court had personal jurisdiction over Cem Uzan, his counsel refused to make him available to testify for his deposition, at the preliminary injunction hearing, or at trial, invoking different, but equally frivolous, excuses on each occasion. Or, to give another example (of many), after the Uzans brought in their own separate counsel and, through him, unequivocally represented to Magistrate Judge Maas that they intended to provide previously-ordered discovery and litigate the case on the merits, see Motorola Credit Corp. v. Uzan, 02 Civ. 666(JSR)(FM), 2003 WL 203011, at *2 (S.D.N.Y. Jan. 29, 2003), they then secretly procured ex parte Turkish injunctions that purported to prohibit them from fulfilling these very promises, see Order, dated January 6, 2003, 2003 WL 56998 at *2-3. In such circumstances, when defendants, invoking the same specious self-procured injunctions, refused to participate in the long-scheduled trial of this case, see Defendants’ Statement of Intention Regarding the Trial Scheduled for February 10, 2003, dated January 24, 2003, the Court would have been well within its rights to have simply issued a default judgment in plaintiffs’ favor. Instead, taking account of such factors as the size and significance of the case, plaintiffs’ expensive preparations for trial, the availability of the proof developed at the six-day evidentiary hearing and the two-day contempt hearing that the defendants had contested, and the benefit to any reviewing court of detailed findings of fact and conclusions of law, the Court proceeded with the trial. The findings and conclusions resulting therefrom, so far as they relate to remaining claims, appear in Part II of this Opinion and Order. Under the circumstances, defendants are plainly precluded by the most elementary principles of waiver from further litigating any factual disputes they could reasonably have raised at trial, as well as any waivable legal issues not otherwise preserved that could have been raised at trial or earlier. On the other hand, there are certain issues that can never be waived, such as subject matter jurisdiction and standing. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (“The federal courts are under an independent obligation to examine their own jurisdiction.”). Also, if there are legal issues that, though waivable in principle, have previously been fully preserved or that could not reasonably have been expected to be raised until after the trial (notably, those issues that only became salient as a result of the Court of Appeals’ decision), those issues may still be litigated and are considered below. As to the second motion, plaintiffs’ move, pursuant to Fed.R.Civ.P. 15(d), to file a supplemental complaint reinstating their RICO claims. In dismissing plaintiffs’ RICO claims, the Court of Appeals found here applicable the holding of First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763 (2d Cir.1994), that “ ‘a plaintiff who claims that a debt is uncollectible because of the defendant’s conduct can only pursue the RICO treble damages remedy after his contractual rights to payment have been frustrated.’ ” Motorola, 322 F.3d at 136, quoting First Nationwide, 27 F.3d at 768. The Court found that because plaintiffs, though declaring Telsim in default, had not yet pursued all their contractual remedies against Telsim, including foreclosing on the collateral and seeking damages from Telsim through Swiss arbitration, the extent of their RICO damages was uncertain and their RICO claims were therefore premature at this time. See Motorola, 322 F.3d at 136. In now seeking to reinstate their RICO claims, plaintiffs contend that pursuing their contractual remedies any further would be futile because there is no “real possibility that the debt, and therefore the injury, may be eliminated or significantly reduced,” Motorola, 322 F.3d at 136, either by foreclosure on the collateral or by resort to other contractual remedies. This argument is far from frivolous. As to the collateral, defendants have not only, as noted, significantly diluted its value, but also have effectively stripped it of its voting, auditing, and management control rights. Specifically, after the defendants, in April 2001, had diluted the value of the collateral to one-third of what it had been, the defendants, on January 4, 2002, held another unannounced meeting of Telsim’s shareholders at which they caused Telsim to enact certain resolutions that, upon being registered with the Turkish government, would create a new class of Uzan-controlled shares, unencumbered by any pledge to MCC or Nokia, the holders of which would have authority to nominate four of Telsim’s five directors and all three of Telsim’s statutory auditors. The resolutions also permitted Telsim to become a member of certain Turkish “foundations,” the assets of which are largely protected from creditors. In direct defiance of this Court’s preliminary injunction order, as well as their own express promise to the Court, the defendants then registered these resolutions with the Turkish authorities on July 19, 2002. See Opinion, dated May 20, 2002, 202 F.Supp.2d 239, 248 & n.4; Opinion and Order, dated August 22, 2002, 2002 WL 1963301 at *2-4. Moreover, defendants have repeatedly resisted, and gone into contempt of, this Court’s orders to transfer the collateral (or its functional equivalent) to the registry of this Court so that it could be used to satisfy any judgment. They have also declined the proffered alternative of posting a bond in lieu of the collateral, preferring to remain in contempt. See e.g., Opinion and Order, dated August 22, 2002 (holding all defendants in civil contempt for failing to deposit the collateral with the Court and the individual defendants in civil contempt for registering the January 4 Resolutions); Order, dated October 15, 2002 (enhancing contempt sanctions); Memorandum Order, dated October 15, 2002, 2002 WL 31319932 at *4 & n.l (finding that defendants commenced Swiss arbitrations “in an effort to undercut the prior orders of, and proceedings before, this Court”); Memorandum Order, dated January 7, 2003, 2003 WL 56998 (discussing defendants’ procurement of Turkish injunctions purporting to stay the instant action in contravention of this Court’s September 30 and October 15 Orders). But the fact that the value of the collateral has been hugely diminished and made more difficult to realize does not make it worthless. Indeed, even after July 19, 2002, plaintiffs repeatedly sought to have the collateral, or some equivalent thereof, moved to the registry of the Court on the basis that it could be used to help materially satisfy any judgment rendered in their favor. See Plaintiffs’ Memorandum of Law in Support of their Motion for a Preliminary Injunction, dated January 28, 2001, at 27-28. Moreover, defendants, while contemptuously resisting transfer of the shares to this Court, have represented that they will seek permission from the Turkish courts to transfer the collateral, or its equivalent, to the Swiss arbitrations. See Transcript, dated June 21, 2002 at 194. Nonetheless, if it were only a question of the collateral, the Court might well agree with plaintiffs that there is no “real possibility” that it will ever be made available to “significantly” reduce defendants’ conceded debt to plaintiffs of more than $2.7 billion. But under their contracts with Telsim, MCC and ABN-AMRO Bank (on behalf of Nokia) can seek a judgment for damages against Telsim, to which it appears that Telsim’s only defense is its claim of “economic force majeure.” While ABN-AMRO Bank commenced such an arbitration shortly prior to the filing of this lawsuit, it does not appear to have pursued it aggressively; and MCC has not pursued arbitration at all, so this remedy has not been put to the test. In any event, the Court of Appeals implicitly anticipated the argument plaintiffs here make, noting that “[i]t may be that the arbitration is a forlorn hope for MCC and Nokia, and that, in any event, the collateral will yield little of value.” Motorola, 322 F.3d at 137. Yet even after countenancing this possibility, the Court of Appeals dismissed the RICO claims as being premature until the contractual remedies were exhausted. It follows that, this precondition being still unmet, plaintiffs’ motion to reinstate the RICO claims must be denied (though, once again, without prejudice). As to the third motion, defendants move to dismiss MCC’s various claims alleging so-called “computer hacking,” specifically, Count VIII (alleging violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(4)), Counts IX and X (alleging violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511(1)(A), 2701(a)(2)), and Count XI (alleging violation of the Illinois Trade Secrets Act, 765 ILCS Ch. 1065), on the ground that the only injury, if any, that resulted from the alleged hacking was an injury to Motorola, Inc., not to MCC. While, given their affiliated status, it may be that Motorola, Inc. and MCC can be conflated or viewed as agents of one another for certain evidentiary and other purposes, when it comes to bringing a claim the corporate forms must be respected and, absent an assignment or the like (not present here), only a company that itself suffered an injury can sue on that claim. See, e.g., Bross Utils. Serv. Corp. v. Aboubshait, 618 F.Supp. 1442, 1445 (S.D.N.Y.1985) (“[Cjourts will not allow a parent to pierce the corporate veil it created for its own benefit, so as to assert the claims of its subsidiary.”) (emphasis in original). Here, defendants are correct that the evidence adduced by MCC on these charges shows only that an attempt was made to gain access to a server belonging to Motorola, Inc., not MCC; that proprietary information was copied from a database belonging to Motorola, Inc., not MCC; and that only Motorola, Inc., not MCC, expended funds in investigating the aforementioned incidents. See Plaintiffs’ Trial Exhibit (“PT”)-458 (Allan Baxter testimony at preliminary injunction hearing) at 369-373, 384-386; PT-460 (Declaration of Ian Menzies dated February 7, 2003) at 2-6. While MCC argues that it made use of Motorola, Inc.’s computer network, see Transcript, dated February 19, 2003 (Ian Stuart Menzies testimony at trial) at 82; Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions of April 4, 2003, dated April 24, 2003, at 64, it has adduced no evidence that any communication to or from MCC was actually intercepted. Similarly, while MCC argues that the contact list of customers that was copied “naturally included customers of [MCC],” id., it has adduced no admissible evidence to sustain this inference. MCC’s strongest response, however, is that defendants waived the instant objection by not raising it at or before trial. Thus, for example, if defendants were asserting that MCC was not the real party in interest, see Fed.R.Civ.P. 17(a), failure to raise this defense before trial would normally constitute waiver of the defense. See, e.g., United HealthCare Corp. v. Am. Trade Ins. Co., 88 F.3d 563, 569 (8th Cir.1996) (“Because the requirements in Rule 17(a) are for the benefit of the defendant, we have held that an objection on real party in interest grounds should be raised with reasonable promptness in the trial court proceedings. If not raised in a timely or seasonable fashion, the general rule is that the objection is deemed waived.”) (internal quotation marks omitted); Whelan v. Abell, 953 F.2d 663, 672 (D.C.Cir.1992) (“[W]here a Rule 17(a) defense is made, judges abuse their discretion in allowing the plea as late as the start of the trial if the real party has been prejudiced by the defendant’s laxness.”); see also Gogolin & Stelter v. Karn’s Auto Imports, Inc., 886 F.2d 100, 102 (5th Cir.1989); K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1153 n. 2 (10th Cir.1985); Rosenblum v. Dingfelder, 111 F.2d 406, 407 (2d Cir.1940). But here the objection is more in the nature of an objection to MCC’s standing. It is not as if MCC believed it stood in the shoes of Motorola, Inc., but was mistaken in this belief, a classic situation for the application of Rule 17(a). See, e.g., Del Re v. Prudential Lines, Inc., 669 F.2d 93, 96-97 (2d Cir.1982) (declining to allow Rule 17(a) ratification where “no difficulty, confusion or mistake ever existed ... regarding the identify of the party in whose name the suit must be brought”). Rather, MCC has at all times asserted that it is suing on its own behalf, but it has proven unable to adduce anywhere that, as such, it suffered any injury frojn the alleged computer hacking. It therefore lacks standing to bring these claims, a failure that is jurisdictional in nature and therefore un-waivable. See Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir.1994). Accordingly, Counts VIII through XI are hereby dismissed. As to the fourth motion, given that all federal claims have now been dismissed (albeit without prejudice in the case of the RICO claims), plaintiffs move for the Court to retain supplemental jurisdiction over the remaining state claims, ie., MCC’s claims under Illinois law for common law fraud, promissory fraud, and civil conspiracy, and MCC’s and Nokia’s joint claim (under New York law, see infra) for imposition of a constructive trust. As a threshold matter, a district court can retain supplemental jurisdiction over state claims following dismissal of all federal claims only if it had original jurisdiction over some or all of the now-dismissed federal claims. Since the federal claims (ie., the RICO claims and three of the computer hacking claims) were dismissed for lack of standing, defendants argue that the Court never had original jurisdiction over those claims. But in the case of the RICO claims, dismissal was without prejudice precisely because what was lacking was not original jurisdiction but rather a failure to satisfy a further, judicially-created requirement that a plaintiff not bring a RICO suit until he has exhausted his contractual remedies and thereby clearly and definitely ascertained his RICO damages. Motorola, 322 F.3d at 135. As the Court of Appeals, in contrasting the higher RICO standard of causation with the lower constitutional standard, recently held in Lerner v. Fleet Bank, N.A., 318 F.3d 113, 117 (2d Cir.2003), “RICO standing is not a jurisdictional prerequisite the absence of which would divest the district court of the original jurisdiction required to support supplemental jurisdiction.” Similarly here, although plaintiffs have not satisfied the prerequisite of RICO standing that their injuries be “clear and definite,” they have met the lower constitutional standing threshold of alleging injuries that are “ ‘distinct and palpable,’ ” see Matter of Appointment of Indep. Counsel, 766 F.2d 70, 73 (2d Cir.1985), citing Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 60 L.Ed.2d 66, (1979). That is all that is required for original jurisdiction. Since, therefore, the Court had original jurisdiction over the RICO claims that it has now dismissed, it may, but is not required to, continue to exercise supplemental jurisdiction over the state claims. 28 U.S.C. § 1367(c). Apart from the dismissal of the federal claims, none of the statutory reasons for declining supplemental jurisdiction in such circumstances is present here: the state claims do not raise novel or complex issues of state law; the state claims do not substantially predominate over the now-dismissed but potentially-reinstatable federal claims; and no exceptional circumstances compel the Court to decline to exercise supplemental jurisdiction. Id. Numerous factors, however, weigh in favor of the Court’s retaining supplemental jurisdiction here, including such classic factors as “considerations of judicial economy, convenience, and fairness to litigants,” see Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994). Indeed, with respect to judicial economy, this is a particularly strong case for retaining supplemental jurisdiction, since the Court has not only spent considerable time dealing with the legal issues and becoming fully conversant with the facts but also has conducted a trial on the merits, so that it is in the position to promptly enter final judgment on the supplemental claims (see Part II infra). Moreover, if the Court were to decline supplemental jurisdiction, plaintiffs might be deprived of the previously-granted in-junctive relief, without which they would suffer irreparable injury. See Orders, dated May 9 and May 10, 2002 (granting plaintiffs’ preliminary relief); Opinion, dated May 21, 2002 (setting forth the reasons for the May 9 and May 10 Orders); see also Supplemental Order of Attachment, dated January 3, 2003; Supplemental Order of Attachment, dated November 14, 2002; Order, dated August 29, 2002. Accordingly, plaintiffs’ motion to have the Court retain supplemental jurisdiction over the remaining state claims is hereby granted. As to the fifth motion, defendants move to dismiss MCC’s state law claims for common law fraud, promissory fraud, and civil conspiracy. Defendants argue that, as in the case of the RICO claims, these Illinois claims are unripe for adjudication because, until the contractual remedies are exhausted, the extent of damages remains uncertain. But the Illinois law of fraud recognizes no equivalent of the Second Circuit’s stringent rule that denies RICO standing unless contractual remedies are exhausted and the calculation of the remaining damages is clear and definite. Rather, as in most states, Illinois allows fraudulent inducement and extrinsic fraud claims to proceed even where contractual remedies may be available and requires only that the damages not be so speculative as to leave in doubt whether plaintiff has been materially harmed at all. The case on which defendants here primarily rely, City of Chicago v. Mich. Beach Hous. Coop., 297 Ill.App.3d 317, 231 Ill.Dec. 508, 696 N.E.2d 804 (1998), is simply an example of such extreme specula-tiveness that easts even the fact of injury in substantial doubt. In that case, the court rejected the City of Chicago’s argument that it had been damaged by defendant’s misrepresentation that a loan from the city to defendant would be used to transform low-income rental housing into a cooperative when instead defendant simply intended to use the funds to subsidize the low-income housing. The Court explained: The city argues that even though the loan is not yet in default, it has been injured by defendants’ inability to pay and the increased risk to the city’s investment. But we can only speculate about whether the loan will be repaid when it becomes due after 42 years, or whether the building’s use as rental housing makes the investment “riskier.” Id. 231 Ill.Dec. 508, 696 N.E.2d at 810. In other words, the action was dismissed because it was unclear whether plaintiff had been placed at greater risk than it had bargained for or that it had suffered any economic injury at all. Here, by contrast, MCC has clearly been placed at greater risk by, among other thing, the fraudulent diversion of no less than $1 billion of the loaned monies away from the company they were lent to and into the hands of the defendants and by the huge (and measurable) decline in the value of the fraudulently impaired collateral. Thus, so far as the Illinois fraud claims are concerned, the case is governed by decisions like Application of Busse, 124 Ill.App.3d 433, 79 Ill.Dec. 747, 464 N.E.2d 651 (1984). There, the court held that defendants’ impairment of the value of plaintiffs bargained-for collateral constituted “sufficient proof of actual damages to sustain an action for fraud,” even though the debtor had not yet defaulted on the underlying loan. Id. 79 Ill.Dec. 747, 464 N.E.2d at 658. As the Court there stated, “while damages may not be predicated on mere speculation, hypothesis, conjecture or whim, absolute certainty concerning the amount of damage is not necessary to justify a recovery where the existence of damage is established; the evidence need only tend to show a basis for computation of damages with a fair degree of probability.” Id. 79 Ill.Dec. 747, 464 N.E.2d at 655. See also Mich. Beach Hous. Coop., 231 Ill.Dec. 508, 696 N.E.2d at 809. In the instant case, where, as a result of the defendants’ fraudulent looting of Tel-sim, that company has defaulted on its loan repayments and proven unable to repay more than a tiny fraction of the loans, and where, as a result of the defendants’ fraudulent diluting of the collateral, the collateral’s value is at best, a small fraction of what is owed on the loan, plaintiffs have more than made out a basis for bringing suit under Illinois law. The fact that Tel-sim may have quasi-contractual defenses to the default (“economic force majeure ”) or that the collateral, though of ascertainable value, has not yet been foreclosed upon are matters that the defendants may raise as affirmative defenses or in mitigation of damages, but they do not, under Illinois law, preclude plaintiffs from bringing suit. Where, moreover, the loan was fraudulently induced, Illinois law, in a principle established as early as 1886 permits (though does not require) recovery of the full amount of the loan, plus interest, see Horne v. Walton, 117 Ill. 141, 7 N.E. 103, 104 (1886); see also Busse, 79 Ill.Dec. 747, 464 N.E.2d at 658-59, putting the burden on the borrower to prove any reductions, set off, or mitigation, see Commercial Nat'l Bank of Peoria v. Fed. Deposit Ins. Corp., 131 Ill.App.3d 977, 87 Ill.Dec. 107, 476 N.E.2d 809, 813 (1985). More generally, while the Second Circuit in First Nationwide, 27 F.3d at 768, suggested that “[t]he general rule of fraud damages is that the defrauded plaintiff may recover out-of-pocket losses caused by the fraud,” id. Illinois law is both broader and more flexible. As surveyed at some length in Giammanco v. Giammanco, 253 Ill.App.3d 750, 192 Ill.Dec. 835, 625 N.E.2d 990 (1993), fraud damages in Illinois are most commonly calculated by a benefit-of-a-bargain approach, occasionally by an out-of-pocket approach, and sometimes by still other approaches. Id. 192 Ill.Dec. 835, 625 N.E.2d at 998-1001. The common denominator is to try to fashion, if at all possible, a remedy in damages for a victim of an intentional fraud, id., especially where (as here) the defendant’s wrongful conduct has made it difficult to establish the measure of the plaintiffs injury, Fed. Deposit Ins. Corp. v. W.R. Grace & Co., 877 F.2d 614, 624 (7th Cir.1989) (applying Illinois law). Furthermore, regardless of the measure of compensatory damages, a defrauded plaintiff may also be entitled to punitive damages under Illinois law. See Busse, 79 Ill.Dec. 747, 464 N.E.2d at 655; Fed. Deposit Ins. Corp., 877 F.2d at 623. A few examples will illustrate how courts have applied these flexible principles of Illinois fraud law to situations similar to the present case: In Horne, 7 N.E. at 103-04,—the seminal Illinois decision in this area—where a loan was induced by fraudulent misrepresentations regarding the value of the collateral, the Supreme Court of Illinois rejected the lower court’s conclusion that the plaintiff was only entitled to recover the difference between the value of the collateral as represented and its actual worth, and held instead that she was entitled to recover the full amount of her loan plus interest. Id. In Fed. Deposit Ins. Corp., 877 F.2d at 623, applying Illinois law to a case where defendant fraudulently induced plaintiff to lend it $75 million allegedly to develop natural-gas fields that the defendant knew were worthless, but where no default had occurred, Judge Posner (with typical creativity) held that the measure of damages was the total amount the plaintiff could have made by investing the loaned money elsewhere minus the sum of the interest already received on the loan and the remaining value of the actual loan as determined by discounting its face value by the percentage of unlikelihood it would be repakl — a measure that, whatever its conceptual merits, obviously involved some considerable guesswork. In addition, the Court of Appeals upheld the jury’s award of $25 million dollars in punitive damages above its award of $25 million in compensatory damages, noting that “treble damages are a common form of punitive damages,” and that plaintiff in the case received only double damages. Id. In Busse, 79 Ill.Dec. 747, 464 N.E.2d at 657-58, where, as discussed, the collateral was fraudulently impaired but no default had yet occurred on repayment of the loan, the Court, though recognizing that under Illinois law it could have awarded plaintiff the full amount of the loan plus interest, limited recovery to the reduction in the value of the collateral. Id. Finally, in Commercial Nat’l Bank of Peona, 87 Ill.Dec. 107, 476 N.E.2d at 815, a case where plaintiff was fraudulently induced to lend $90,000 to a small manufacturing corporation by false statements as to the financial viability of that corporation, the Illinois Appellate Court, citing Horne, opined that the proper measure of damages was “the sum of money lent plus interest for the time that plaintiff was deprived of possession” (in that case, from the time of the loan until judgment). Id. From the foregoing discussion, it is clear that Illinois fraud law has no limitation of standing comparable to the Second Circuit’s RICO requirement that a plaintiff exhaust his contractual remedies and show a clear and definite measure of damages before bring suit. On the contrary, Illinois courts have allowed plaintiffs who were fraudulently induced into making loans to sue for fraud even before default occurred and to recover any of a wide variety of damages, up to and including the full amount of the loan plus interest, not to mention punitive damages. Finally, it is clear that Illinois law places on the defendant the burden of proving contractual defenses and mitigation of damages, rather than making pursuit of these aspects part of the plaintiffs burden of bringing suit. Accordingly, defendants’ motion to dismiss MCC’s claims under Illinois law for common law fraud, promissory fraud, and civil conspiracy must be denied. As to the sixth motion, MCC moves to amend its complaint to assert an Illinois claim for impairment of collateral. While Illinois law recognizes such a claim, see Hummer v. R.C. Huffman Const. Co., 68 F.2d 372 (7th Cir.1933), the measure of fraud damages available to the Court under Illinois law, as surveyed above, enables the Court, if it finds for MCC on the fraud claims (as it does, see Part II, infra), to fully compensate MCC for all the damages it suffered from defendants’ entire scheme. Accordingly, there is no occasion to add the impairment claim, and MCC’s motion to add a claim for impairment of collateral is therefore denied as moot. As to the seventh motion, plaintiffs move to extend their constructive trust claim to cover certain of defendants’ money and property located in New York. By way of background, plaintiffs’ constructive trust claim — Count XII of the Complaint — applies on its face only to the Telsim stock presently held by defendant Standart Telekom. The theory of the claim is that when, as part of the fraudulent scheme to dilute the collateral, Rumeli Telefon waived its preemptive rights, thereby allowing Standart Telekom to acquire 49% of the outstanding shares of Telsim, it was tantamount to a conversion of a large part of the collateral and accordingly the Telsim shares so acquired should be deemed to be constructively held for plaintiffs’ benefit. See Motorola, 322 F.3d at 138 n. 6. See generally, Republic of Philippines v. Marcos, 806 F.2d 344, 355 (2d Cir.1986). In addition, however, after the Court learned that defendants, in violation of their sworn promise not to register the resolutions of January 4, 2003 transferring control rights from the shares held by Rumeli Telefon to those held by Standart Telekom, had gone ahead and done so — thereby completing the effective conversion of plaintiffs’ collateral — it allowed plaintiffs to broaden their constructive trust claim to apply to the collateral or its functional equivalent (so as to obviate the fraudulent conversion and restore plaintiffs’ true collateral to the status quo ante). Although defendants now try to suggest, (albeit only in a footnote, see Defendants’ Memorandum of Law in Support of their Motions of April 4, 2003, at 60 n. 36) that this Court previously dismissed this claim, that is entirely inaccurate, as the underlying reference cited in defendants’ footnote plainly shows that, far from having decided the issue in defendants’ favor, the Court had not at that time yet focused on the constructive trust question. See PT-458 (oral argument at preliminary injunction hearing) at 1211-12. Indeed, the Court of Appeals recognized as much, for it directed this Court, on remand, to determine whether, even though Nokia did not join in the Illinois fraud claims (presumably because Nokia had insufficient contacts with Illinois), “Nokia’s allegation of a Constructive TrusVEquitable Lien cause of action (it is unclear whether that claim is based on Illinois or New York law) might provide an alternative basis for upholding the preliminary injunction in aid of Nokia.” Motorola, 322 F.3d at 137 n. 4. Even now, moreover, defendants have not argued in their memorandum of law that the constructive trust claim as set forth in the Complaint should be dismissed; and any objections to it they now raise for the first time — such as the suggestion that it is governed by Turkish or Swiss law — have long since been waived. As for the query put by the Court of Appeals regarding whether this claim is governed by Illinois or New York law, since there appears to be no substantive difference in the law of those two states applicable to this claim, the Court does not have to reach which law governs. Both New York and Illinois take a very broad view of constructive trust that would readily make it applicable to any form into which the original collateral was fraudulently diverted. As stated in the leading New York case of Simonds v. Simonds, 45 N.Y.2d 233, 408 N.Y.S.2d 359, 380 N.E.2d 189, 194 (1978), a “constructive trust will be erected whenever necessary to satisfy the demands of justice .... [I]ts applicability is limited only by the inventiveness of men who find new ways to enrich themselves unjustly by grasping what should not belong to them,” and the court “reserves freedom to apply this remedy to whatever knavery human ingenuity can invent.” (internal quotation marks omitted). Plaintiffs, however, have now moved to amend the Complaint to extend the constructive trust beyond the collateral to certain money and property located in New York that the plaintiffs have attached in connection with this lawsuit. So far as MCC is concerned, however, such extension of the constructive trust is unnecessary, since, for reasons set forth in Part II, infra, MCC is entitled to a monetary judgment against which it can directly apply the attached money and property: hence, it has an adequate remedy at law. See Sec. Investor Prot. Corp. v. Stratton Oakmont, Inc., 234 B.R. 293, 333 (Bankr.S.D.N.Y.1999). As for Nokia, it has failed to satisfy the tracing requirement of a constructive trust claim so far as the New York property is concerned. See Rogers v. Rogers, 63 N.Y.2d 582, 483 N.Y.S.2d 976, 473 N.E.2d 226, 227 (1984). Accordingly, plaintiffs’ motion to amend the complaint to extend the constructive trust claim to cover certain money and property located in New York is denied. As to the eighth motion, defendants renew their previously-denied motion to dismiss the case on forum non conveniens grounds, noting that this Court’s prior denial relied, inter alia, on the presence of the now-dismissed RICO claims, which, in the form here pleaded, have no equivalent in the proposed alternative forum of Switzerland. See Order, dated September 30, 2002; Memorandum Order, dated October 16, 2002, 2002 WL 31319932, at *3. “To prevail on a motion to dismiss on the ground of forum, non conveniens, a defendant must demonstrate (1) that there exists an adequate alternative forum, and (2) that the ordinarily strong presumption favoring the plaintiffs chosen forum is overcome by a balance of the relevant factors of private and public interest weighing heavily in favor of the alternative forum.” Aguinda v. Texaco, Inc., 142 F.Supp.2d 534, 538 (S.D.N.Y.2001)(internal citations omitted), aff'd, 303 F.3d 470 (2d Cir.2002). Here, defendants do not even meet the first requirement, for they have not consented to being sued in the courts of Switzerland (their only proposed alternative forum) and are not otherwise subject to personal jurisdiction in those courts. See Jota v. Texaco, Inc., 157 F.3d 153, 159 (2d Cir.1998). The fact that, through their counsel, they have consented to submit these matters to arbitration before a Swiss Arbitral Tribunal sponsored by the Zurich Chamber of Commerce is irrelevant, for the doctrine of forum non conveniens relates to transfer between the courts of different sovereigns and has no bearing on transfer to an arbitral entity, consent to whose jurisdiction is a matter of private contract, see Part 1(9), infra; see generally, AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Moreover, an entity of such limited powers as the Swiss Arbitral Tribunal, which, for example, does not allow for either injunc-tive relief or discovery, see Transcript of Oral Argument Before the Court of Appeals, dated August 5, 2002, at 24, would not be an adequate forum in any case. Moreover, even if defendants could somehow satisfy the first requirement for transfer under the doctrine of forum non conveniens, they could not satisfy the second requirement of showing that the balance of public and private factors weighed sufficiently in their favor to overcome plaintiffs’ choice of forum. Indeed, given that the trial on the merits has already concluded, the notion that it would be more “convenient” to retry the case in another forum is absurd. Defendants’ decision not to participate in the trial should not alter this balance, since that decision was based not on any difficulty defendants faced in accessing the forum but on defendants’ own tactical choice and their collusive procurement of Turkish injunctions purportedly barring their attendance. Accordingly, defendants’ motion to dismiss for forum non-conveniens is denied. As to the ninth motion, defendants renew their previously-denied motion to compel arbitration of the remaining claims, arguing that the dismissal of the RICO claims undercuts part of the rationale for the Court’s prior denial. It is true that the presence of the RICO allegations, supported not only by predicate acts of fraud but also by independently sufficient predicate acts of extortion, made this Court’s earlier denial of arbitration a relatively easy decision. But this was not because of the presence of a RICO cause of action per se, but because of the nature of the underlying allegations, most of which were entirely extrinsic to the transactions covered by the underlying contracts that included the arbitration clauses here in issue, and also because the defendants were not in any event parties to those contracts. Cf. Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 848 (2d Cir.1987) (holding the RICO claims there asserted within the scope of the contractual arbitration because “[t]he wire, mail, and transportation fraud allegations which form[ed] the predicate acts of Genesco’s RICO claim all derive[d] from the parties’ transactions under the sales agreements [that contained the arbitration clause]”). How could it be said that the Uzans, with whom the plaintiffs had no contractual privity whatever (let alone an agreement to arbitrate disputes), could compel the plaintiffs to have a private commercial tribunal determine matters so extrinsic to Telsim’s financing arrangements as whether the Uzans had falsely and for extortionate purposes, charged various Motorola, Inc., Motorola Turkey, and Nokia executives with threatening their murder and procured the arrest and prosecution of several of these executives? Such allegations- — fully supported by the evidence (see Part II, infra) — are light-years removed from anything MCC or Nokia (or ABN-AMRO Bank, acting as Nokia’s agent) could reasonably, indeed, conceivably, have understood they were agreeing to arbitrate when they entered into their contracts to lend money to Tel-sim. The point is that, while federal policy -favors arbitration generally, and most especially in the context of international business transactions, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 629-31, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), the obligation to arbitrate nevertheless remains a creature of contract, see AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (internal quotation marks omitted). “[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Id. Accord, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Shaw Group Inc. v. Triplefine Intern. Corp., 322 F.3d 115, 120 (2d Cir.2003). With this bedrock principle in mind, the Court now addresses whether, in the absence of the RICO claims, arbitration of the remaining claims (i.e., common law fraud, promissory fraud, civil conspiracy, and constructive trust) must be compelled. This, in turn, is a two-part inquiry: a court must decide “whether the parties agreed to arbitrate, and, if so, whether the scope of that agreement encompasses the asserted claims.” David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd., 923 F.2d 245, 249 (2d Cir.1991). With respect to the first inquiry, it is undisputed that neither of the plaintiffs entered into any arbitration agreement with any of the defendants. Defendants, argue, however, that this is an artifice of pleading, an attempt to get around the arbitration agreements that MCC directly, and Nokia indirectly (through ABN-AMRO Bank) entered into with Telsim regarding the very loans that form the financial subject of this case. In such circumstances, defendants argue courts have “estopped [signatories] from avoiding arbitration with [ ] non-signator[ies] ‘when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.’” Choctaw Generation Ltd. Parternship v. Am. Home Assur. Co., 271 F.3d 403, 404 (2d Cir.2001), quoting Smith/Enron Cogeneration Ltd. Partnership, Inc. v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 98 (2d Cir.1999). Such estoppel, however, is inapplicable here, for several reasons. First, the very allegations of the Complaint, let alone the overwhelming evidence now adduced in their support (see Part II, infra) show that this is not a case of trying to plead-around an agreement to arbitrate but rather of directly suing the real culprits, the Uzans, who simply used Telsim as a front to commit the instant fraud. It is Telsim that, if named, would have been the artificial defendant, for the Uzans are the real parties in interest. Second, the estoppel doctrine invoked by defendants is rooted in equity, see Merex A.G. v. Fairchild Weston Systems, Inc., 29 F.3d 821, 824 (2d Cir.1994), and is therefore subject to the equitable maxim that “he who comes into equity must come with clean hands,” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery, 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed. 1381 (1945) (internal quotation marks omitted). From the very outset of this case, plaintiffs have demonstrated that defendants have acted fraudulently, a showing they made even before defendants sought to compel arbitration. Thereafter, defendants, through inconsistencies, omissions, false representations, and tactical diversions, effectively carried their fraud right into the courtroom. See Findings of Fact, infra. A court faced with such conduct is constrained to deny the equitable relief of estoppel that defendants here seek to invoke in aid of arbitration. See Precision Instrument Mfg Co., 324 U.S. at 814-15, 65 S.Ct. 993; Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S.Ct. 146, 78 L.Ed. 293 (1933). Finally, it may be noted that in entering into the agreements with Telsim that defendants here seek to invoke, MCC and ABN-AMRO Bank (on behalf of Nokia) expressly agreed that such agreements would be governed by the law of Switzerland, which strictly enforces privity of contract and generally prohibits non-parties from seeking to invoke contractual terms on their behalf. See Plaintiffs’ Preliminary Injunction Exhibit (“PI”)-14 (Declaration of Professor Dr. Franz Kellerhals dated April 2, 2002) ¶¶ 14-16; PI-19 (Declaration of Dr. Peter Straub dated March 19 2002) ¶ 7; PT-458 (Rolf Weber testimony at preliminary injunction hearing) at 359. While certain caselaw, although not exactly on point, suggests that this objection would not ordinarily prevent this Court from referring the matter in the first instance to the Swiss Arbitration Panel, see Mitsubishi, 473 U.S. at 639, 105 S.Ct. 3346; Rhone Mediterranee Compagnia Francese di Assicurazioni E Riassicurazoni v. Lauro, 712 F.2d 50 (3d Cir.1983); Meadows Indemnity Co. Ltd. v. Baccala & Shoop Ins. Services, 760 F.Supp. 1036 (E.D.N.Y.1991); Marchetto v. DeKalb Genetics Corp., 711 F.Supp. 936 (N.D.Ill.1989), here the objection serves to reinforce the appropriateness in invoking equity to preclude defendants’ motion, for it illustrates how, once again, they seek to misuse doctrines that were developed to effectuate legitimate arbitration to compel a commercial arbitration of their criminal scheme. Accordingly, since the parties to this lawsuit did not agree to arbitrate any dispute between them, and since no basis exists in law or equity for allowing them to invoke Telsim’s agreement to arbitrate, defendants’ motion to compel arbitration must be denied. It remains only to add that, even if this were not so, defendants would still not be able to compel arbitration with MCC, because the scope of the agreement between MCC and Telsim does not, as a matter of law, encompass MCC’s remaining claims in this case. According to the Court of Appeals: To determine whether a particular dispute falls within the scope of an agreement’s arbitration clause, a court should undertake a three-part inquiry. First, recognizing there is some range in the breadth of arbitration clauses, a court should classify the particular clause as either broad or narrow. Next, if reviewing a narrow clause, the court must determine whether the dispute is over an issue that is on its face within the purview of the clause, or over a collateral issue that is somehow connected to the main agreement that contains the arbitration clause. Where the arbitration clause is narrow, a collateral matter will generally be ruled beyond its purview. Where the arbitration clause is broad, there arises a presumption of arbitrability and arbitration of even a collateral matter will be ordered if the claim alleged implicates issues of contract construction or the parties’ rights and obligations under it. Louis Dreyfus Negoce v. Blystad Shipping & Trading Inc., 252 F.3d 218, 224 (2d Cir.2001) (internal quotation marks and citations omitted). The agreements between MCC and Tel-sim most directly here relevant — the License Financing and Security Agreement, dated April 24, 1998 (“License Financing Agreement”), and the Equipment Financing and Security Agreement, dated April 24, 1998 (“Equipment Financing Agreement”), upon which the loans were extended — each provides in pertinent part: This Financing Agreement shall be governed by and interpreted in accordance with the internal laws (without regard to the laws of conflicts) of Switzerland. In the event a dispute arises hereunder, or under any document or agreement delivered in connection herewith, the parties will attempt to resolve such dispute through negotiation, mediation or another form of ADR in the first instance. Any dispute which cannot be resolved between the parties through negotiation, mediation or other form of ADR within four (4) months of the date of the initial demand for ADR by one of the parties, shall then be resolved, to the exclusion of the ordinary courts by a three-person Arbitral Tribunal in accordance with the International Arbitration Rules of the Zurich Chamber of Commerce (“the COC Rules”).... (emphasis supplied) Plaintiffs’ Separately Marked Trial Exhibit DX (“DX”)~3 (License Financing Agreement), at 23; DX-5 (Equipment Financing Agreement), at 23 (emphasis supplied). Similarly, the other relevant agreement— the Share Pledge Agreement, dated April 24, 1998 — incorporates this language by reference. See DX-14 (Share Pledge Agreement) at 7 (“This Agreement shall be governed by and construed in accordance with the laws of Switzerland, and disputes shall be resolved in accordance with the procedures, terms and conditions set forth in the License Financing Agreement for resolution of disputes.”). Thus, what the parties agreed to arbitrate was only a dispute that “arises hereunder, or under any document or agreement delivered in connection herewith.” Under still binding Second Circuit precedent, this language renders the arbitration clause narrow in scope, see In re Kinoshita, 287 F.2d 951, 953 (1961), and inapplicable to MCC’s state law claims of fraud and the like, which on their face concern matters extrinsic to the contract itself, such as fraudulent inducement, fraudulent diversion, and the like, rather than “disputes and controversies relating to the interpretation of the contract and matters of performance.” Id. The Court is aware that Kinoshita “has been frequently criticized in this Circuit” and has been “confined to its precise facts,” that is to the phrase “arising under” or, at most, “its equivalent.” ACE Capital Re Overseas Ltd. v. Central United Life Ins. Co., 307 F.3d 24, 33 (2d Cir.2002) (internal' quotation marks omitted). But these are the words here used in the applicable agreements, and the fact remains that Kinoshita has not been overruled, see, e.g., Genesco v. T. Kakiuchi & Co., 815 F.2d 840, 854 n. 6 (2d Cir.1987) (“[W]e decline the invitation [to overrule Kinoshi-ta ].”); S.A. Mineracao da Trindade-Sam- itri v. Utah Int’l, Inc., 745 F.2d 190, 194 (2d Cir.1984) (“We decline to overrule In re Kinoshita.”). Kinoshita is therefore binding where, as here, the arbitration clause is indistinguishable from, if not more narrow than, the clause at issue in that ease. Moreover, it may be suggested that there is a good reason why Kinoshita has not been overruled. For all the current “tilt” in favor of arbitration, it is still a function of what the parties agreed to. Under ordinary principles of contract interpretation — indeed, under plain English meaning — “arising under” a contract cannot fairly be read to extend to disputes that either proceeded the formation of the contract (such as fraudulent inducement) or that are entirely extrinsic to the contract (such as the Uzans diverting of the loan monies into their own pockets). However much some courts may prefer arbitration, private parties are still entitled to have straightforward contractual agreements that are couched in simple English words enforced in accordance with their terms. The difference between the language in MCC’s contract with Telsim and the language in ABN-AMRO Bank’s contract with Telsim still further reinforces the conclusion that MCC never agreed to arbitrate the instant disputes. The ABN-AMRO Bank agreement, which in its most recent form is known as the “Third Facility Agreement” dated May 30, 2000 (see Findings of Fact, infra), provides that: Any dispute(s) arising between the Parties out of or in connection with this Agreement (including its interpretation, closing, execution, binding effect, amendment, breach, termination or enforcement) shall be submitted, to the exclusion of the ordinary courts, to a three-person arbitration tribunal in accordance with the International Arbitration Rules of the Zurich Chamber of Commerce.... PT-1004D (Third Facility Agreement) §§ 22.1-22.2 (emphasis supplied). This is classic “broad” language, but by its very breadth